Opinion
00 Civ. 914 (SAS)
December 17, 2003
Freda Khan, Esq., Boris Kogan, Esq., Boris Kogan Associates, New York, NY, for Plaintiff
Diana E. Goell, Assistant Corporation Counsel, New York, NY, for Defendants
MEMORANDUM OPINION AND ORDER
Pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 2107, Boris Kogan, counsel for plaintiff Arye Neishlos, moves the Court for an extension of time to file a Notice of Appeal.
Plaintiff purports to make his motion pursuant to Federal Rule of Civil Procedure 4(a)(6), but I assume that he intended to cite the Federal Rules of Appellate Procedure.
On October 31, 2003, this Court issued an Opinion and Order granting defendants' motion for summary judgment ("October 31 Opinion") pursuant to which the Clerk of the Court entered a judgment on November 5, 2003 ("November 5 Judgment"). The November 5 Judgment docket sheet entry, which is publicly available via the Internet, indicates that copies of the judgment and notice of right to appeal were mailed to the parties on that date. Under Fed.R.App.P. 4(a), Neishlos had thirty days "after the judgment or order appealed from is entered" to file the notice of appeal. The thirty-day period provided in Rule 4(a)(1) expired on December 5, 2003, without any appeal having been taken.
Kogan attributes the failure to timely file the notice of appeal on behalf of his client to the fact that he did not receive the November 5 Judgment until December 11, 2003, due to a "mail carrier's error." Apparently "[o]ver the last years [Morgenstern Company, CPA's, PC] occasionally received mail addressed to Mr. Kogan." When Altusky noticed that the "bin had been full for some time," she informed Kogan that some of his mail was in the "bin." This led to Kogan's December 11 discovery of the (mailed) November 5 Judgment. Based on these facts, Neishlos now moves for an extension of time to file the notice of appeal.
12/11/03 Declaration of Boris Kogan in Support of Plaintiff's Motion for an Extension of Time to File a Notice of Appeal ¶ 2.
12/11/03 Affidavit of Anne Altusky, Office Manager for Morgenstern Company, CPA's PC ¶ 5.
Id. ¶¶ 7-8.
"Compliance with Rule 4(a) is 'mandatory and jurisdictional.'" In a civil case, the notice of appeal must be ordinarily filed within thirty days after the judgment or order is entered. "The power of the federal courts to extend this time limitation is severely circumscribed. In most civil cases, there are only two potential methods for doings so." One method is through Fed.R.App.P. 4(a)(6); the other is through Fed.R.App.P. 4(a)(5).
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355? 364 (2d Cir. 2003) (quoting Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 55 (2d Cir. 1997)).
See Fed.R.App.P. 4(a)(1).
Silivanch, 333 F.3d at 364 (citations omitted).
Although Neishlos only cites Rule 4(a)(6), because the grounds for the motion are unclear, see supra note 1, I will also briefly consider whether relief may be appropriate pursuant to Rule 4(a)(5). "Fed.R.App.P. 4(a)(5) allows the district court to 'extend the time to file a notice of appeal' if a party 'shows excusable neglect or good cause.'" Id.
"The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant." Advisory Committee's Notes on 2002 Amendments to Fed.R.App.P. 4(a)(5). Courts evaluating excusable neglect typically consider several factors, including:
[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.Silivanch, 333 F.3d at 366. The Second Circuit has placed special emphasis on the third factor. See id. Kogan was on notice that the mail carrier had, over the past several years, failed to properly deliver his mail. But even overlooking that fact, it is hard to believe that Kogan lacked notice of the November 5 Judgment, having been notified directly by this Court of the October 31 Opinion granting summary judgment. Moreover, both the opinion and the judgment were promptly docketed.
Accordingly, Neishlos' failure to timely file the notice of appeal fails to rise to "excusable neglect."
"The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant." Advisory Committee's Notes on 2002 Amendments to Fed.R.App.P. 4(a)(5). According to the Advisory Committee's Notes, if "the Postal Service fails to deliver a notice of appeal, a movant might have good cause to seek a post-expiration extension." Id. (emphasis added). Where plaintiff's attorney was in receipt of, or at least had notice of, the October 31 Opinion, the mail carrier's delivery of the November 5 Judgment to the right building (albeit to the wrong suite) does not constitute "good cause" for a post-expiration extension.
Fed.R.App.P. 4(a)(6) states that:
The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;
(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced.
For the following reasons, Neishlos has failed to make a sufficient showing that he lacked notice of entry of the judgment or order from the district court or any party within twenty-one days after entry. This Chambers has a practice of telephoning the parties to inform them that an opinion and order has been issued. The parties have the option of either picking up a copy of the opinion or receiving it by mail. Neishlos does not dispute that he received the October 31 Opinion granting summary judgment to defendants. Thus, even assuming that he did not receive the November 5 Judgment, he had notice that a judgment would be entered in defendants' favor pursuant to the October 31 Opinion. Accordingly, he should have checked the docket sheet for entry of the judgment. The docket sheet is accessible to the public online, and "parties have an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal." Because the Court does not find that Neishlos lacked notice of the November 5 Judgment, an extension of time under Fed.R.App.P. 4(a)(6) is inappropriate.
See United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001) (per curiam).
Accordingly, Neishlos' motion for an extension of time to file the notice of appeal is denied.
SO ORDERED.